Matter of Vargas v Annucci

Matter of Vargas v Annucci 2017 NY Slip Op 00688 Decided on February 2, 2017 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 2, 2017
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[*1]In the Matter of KARRIEM VARGAS, Petitioner,

v

ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: November 29, 2016
Before: Peters, P.J., McCarthy, Egan Jr., Lynch and Aarons, JJ.

Karriem Vargus, New York City, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.

Upon being examined by a correctional facility nurse for a reported medical emergency, petitioner was charged in a misbehavior report with using an intoxicant. Following a tier III disciplinary hearing, petitioner was found guilty and that determination was affirmed upon administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We are unpersuaded by petitioner's contention that, because his urinalysis test was negative, substantial evidence does not

support the determination of guilt. The record establishes that the misbehavior report was based upon an examination of petitioner by the correction facility nurse. The nurse testified that petitioner's sluggish behavior during the examination and his vital signs, particularly his pinpoint and fixed pupils, indicated that petitioner was under the influence of an intoxicant. We find that the misbehavior report, supporting documentation, testimony at the hearing, particularly that of the nurse based upon her experience, examination and observation of petitioner, are "sufficiently relevant and probative . . . to constitute substantial evidence" of petitioner's guilt (Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990] [internal quotation marks and citation omitted]; see Matter of Panek v Goord, 23 AD3d 966, 967 [2005], lv denied 6 NY3d 709 [2006]; Matter of [*2]Eckert v Selsky, 247 AD2d 728, 729 [1998]). Petitioner's contention that he was suffering from dehydration, an assertion that the nurse testified was inconsistent with his pinpoint pupils, created a credibility issue for the Hearing Officer to resolve (see Matter of Shepherd v Annucci, 142 AD3d 1244, 1244 [2016]).

Peters, P.J., McCarthy, Egan Jr., Lynch and Aarons, JJ., concur.

ADJUDGED that determination is confirmed, without costs, and petition dismissed.